Com. v. Tracy

Decision Date31 July 1989
Docket NumberNo. 88-P-763,88-P-763
Citation539 N.E.2d 1043,27 Mass.App.Ct. 455
PartiesCOMMONWEALTH v. Patrick W. TRACY (and three companion cases 1 ).
CourtAppeals Court of Massachusetts

Elliot R. Levine, for Patrick Tracy.

James Lang, Asst. Dist. Atty., for the Com.


DREBEN, Justice.

A few minutes before 9:00 P.M., on May 9, 1986, as the Triple A Supermarket in Needham was about to close, Patrick Tracy entered the market, asked for the manager, and held him up at gunpoint. Tracy left with about $5,600 in cash. Responding to a radio dispatch about the armed robbery, the police at first followed and then engaged in a 4.9 mile chase of a green Ford LTD whose driver refused to pull over. Pursued at times by four police cruisers with flashing lights and activated sirens, the Ford hit three cars before it stopped. Halfway through the chase, the gun used in the robbery was thrown from the vehicle.

Tracy, the owner of the Ford, and Magee, the driver, were arrested. They were each charged with armed robbery, carrying a firearm, and receiving stolen property. At trial, Tracy, a Vietnam veteran, presented an insanity defense based on post-traumatic stress disorder. He was acquitted of armed robbery by reason of insanity but was convicted of carrying a firearm and receiving stolen property (the gun). Magee was found guilty of armed robbery and of carrying a firearm but was found not guilty of receiving stolen property.

Each defendant raises a number of issues. We shall first discuss those separately argued by Magee. Where relevant, additional facts, which the jury could have found, will be supplied.

Magee's Appeal.

1. Claim of insufficient evidence. Relying on Commonwealth v. Fickett, 403 Mass. 194, 196-198, 526 N.E.2d 1064 (1988), Magee correctly points out that to support his conviction on a theory of joint venture, the Commonwealth had to prove that he knew that Tracy had a gun. He claims there was insufficient evidence to show such knowledge and hence to warrant his conviction of armed robbery and of carrying a firearm. 2

Unlike the situation in Fickett, however, where the victim was intoxicated and hence an easy target for a robbery without a weapon, a robbery of a store is a different undertaking. It can be expected that a number of people will be present and that a means must be found to persuade the intended victim to part with his money. See Commonwealth v. Ferguson, 365 Mass. 1, 9, 309 N.E.2d 182 (1974) ("a person joining in a robbery under conditions like the present, and apprehending that the intended victim might resist, could suppose that the other actor[ ] might be furnished with [a] weapon[ ]"). See also United States v. Sanborn, 563 F.2d 488, 490 (1st Cir.1977).

There was other evidence from which the jury could infer knowledge of the gun. Magee was the driver of the getaway vehicle after the armed robbery. In such circumstances, both the Supreme Judicial Court and this court have been "unwilling to adopt a rule which would create artificial barriers against inferences of complicity which may naturally be drawn against one found present in a getaway car during or shortly after an armed robbery." Commonwealth v. Giang, 402 Mass. 604, 609, 524 N.E.2d 383 (1988), quoting from Commonwealth v. Drew, 4 Mass.App.Ct. 30, 32-33, 340 N.E.2d 524 (1976). Such inferences are even more natural where, as here, the defendant engaged in a high-speed police chase, and the gun and some of the money were thrown from the car. In addition, Magee and Tracy were long-time friends and had spent the afternoon together prior to the robbery, a time when they had an opportunity to plan the undertaking. Tracy, who had driven to the store, did not park in front of the market or in its parking lot, but left the vehicle, with Magee inside, farther away where the Ford could not be seen by persons in the market. In effecting the robbery, Tracy wore (in May) a heavy pea coat and white garden gloves and carried the gun into the store hidden in, or under, a paper bag. The .38 caliber Smith & Wesson weapon was in evidence, and the jury saw its size.

While there was no direct evidence that Magee knew of the gun, we consider the evidence sufficient, under the standard of Commonwealth v. Latimore, 378 Mass. 671, 676-678, 393 N.E.2d 370 (1979), to warrant findings by the jury that Magee actively participated in the venture, knew what Tracy was wearing, and knew that a gun was involved. The judge did not err in denying Magee's motion for a required finding of not guilty.

There is also no merit in Magee's contention that there was insufficient evidence against him in light of the other verdicts returned by the jury. That one defendant is found to be insane does not shield a responsible participant, Commonwealth v. McGrath, 358 Mass. 314, 321, 264 N.E.2d 667 (1970), and inconsistency will not render verdicts of guilty erroneous. Commonwealth v. Sherry, 386 Mass. 682, 698, 437 N.E.2d 224 (1982).

2. Extraneous matter on booking slip. After Magee was arrested and brought to the Needham police station, Officer Hunt, the policeman on duty, filled out a yellow booking slip for each defendant. The slips were admitted in evidence over objection. The Commonwealth urged that Tracy's slip was relevant to show that, despite his claim of insanity, Tracy could, within half an hour of his arrest, answer questions with clarity. Counsel for Magee objected on the ground that he had not been shown the slips and that since Magee's slip contained his statements, there was a breach of the pretrial discovery agreement. 3 Magee claims that he was prejudiced by this breach and that, in any event, the introduction of the slips was so fundamentally unfair that his motion for a new trial should have been allowed.

The slips listed the defendants' answers to routine questions such as name, address height, etc. The Commonwealth had agreed in a pretrial conference report to provide the "written or recorded statements of defendant." The conference report also stated that the Commonwealth would allow the defendant to inspect material and relevant physical evidence and documents "at Needham Police Dept. at mutually agreeable time." The booking slips were not delivered to the defendants prior to trial and it does not appear that either defense counsel went to the police department to inspect any material.

Magee's booking slip, a copy of which is set forth in the appendix to this opinion, caused the defendant a twofold problem. The first difficulty, elicited by his own counsel, relates to the words "Coolidge House," written on the side of the slip. On cross-examination Officer Hunt testified that Coolidge House was a halfway house. At counsel's request, the judge gave a cautionary instruction that the jury were not to draw an unfavorable inference from the address and that there are many reasons why people are residents of halfway houses. 4

The second, and more serious, was not noticed by counsel until three days after the jury returned their verdict and was the basis for Magee's motion for a new trial. On the slip, in the space listed for offense, after setting forth in large bold letters "C. 265 § 17 ARMED ROBBERY WITH A DANGEROUS WEAPON," there appears interlineated in much smaller and much less legible writing the following notation:

"2 5 c. 265 § 18B committing an offense while using a firearm (2nd offense)."

The difficult question is whether a new trial is required. Quite apart from any prejudicial material, it was error to admit Magee's booking slip in evidence as it was not relevant to any issue at trial. But that ground was not urged prior to its admission, see note 4, supra, nor, of course, was there any objection to the then unnoticed offending material.

Contrary to the defendant's contention, the Commonwealth was not in violation of the discovery agreement to produce the defendants' statements. Even if the routine answers on the booking slips are characterized as statements of the defendants, the notation at issue was not such a statement. While it might have been better practice to produce the slips, the failure to do so was not a breach of the pretrial agreement.

The defendant claims that the slip clearly shows that Magee had a criminal record, and "[i]t is all too easy for a jury to surmise that if a defendant earlier committed a crime, he probably committed the crime for which he is being tried, particularly if the crimes are similar." Commonwealth v. Guilfoyle, 396 Mass. 1003, 1004, 485 N.E.2d 679 (1985). In sum, he claims the trial was fundamentally unfair.

The standard for our review is whether there is a substantial risk of a miscarriage of justice as no correct ground for the exclusion of the booking slip was given to the trial judge. See Commonwealth v. Clark, 23 Mass.App. 375, 381, 502 N.E.2d 564 (1987). See also Commonwealth v. Ford, 397 Mass. 298, 302, 490 N.E.2d 1166 (1986), where a specific objection to the extraneous material on a conviction record was made. See same case in this court, 20 Mass.App.Ct. 575, 579, 481 N.E.2d 534 (1985). Since Magee also moved for a new trial, we consider, as well, whether the judge abused his discretion in applying the standard under Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979) ("if it appears that justice may not have been done"). See Commonwealth v. Stout, 356 Mass. 237, 242, 249 N.E.2d 12 (1969).

The question, therefore, is the degree of prejudice. Although counsel may not have had much time to look at the booking slip prior to its introduction, he extensively cross-examined Officer Hunt about the addresses on it. His motion for a mistrial was not made until the next day, and then only on the basis of the halfway house reference. He thus had ample time to examine the slip, yet as Magee's appellate counsel states in his brief, the "prejudicial notation escaped defense counsel's...

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